`Three Strikes' Law Is Political Fool's Gold

Politicians in California are exploiting public sentiment on crime to win reelection, but new legislation won't stop the violence

April 11, 1994

By Franklin Zimring. Franklin Zimring is professor of law and director of the Earl Warren Legal Institute at the University of California at Berkeley.

A STORY is unfolding in California that seems more like the plot of a Kurt Vonnegut farce than a narrative about state government and criminal justice, but nobody who understands the significance of recent events for this state is laughing. The tale began last fall when the father of a murder victim put together a version of ``three strikes, you're out'' criminal sentencing that was vastly broader than anything proposed anywhere else, and he started a campaign to put it on California's ballot as an initiative for 1994. Prior to last November, the proposal drew support only from the National Rifle Association and some right-wing politicians. All this changed with the killing of 12-year-old Polly Klaas by a twice-convicted and recently paroled violent offender.

Politically, this could not have happened at a better time for beleagured Gov. Pete Wilson (R), who has entered an election year with abysmal approval ratings and a slumping state economy. Governor Wilson grabbed the crime issue as his best hope for reelection and exhorted Californians to consider the ``three strikes'' proposal as a memorial to Polly Klaas. The Democrats rushed to deny Wilson his only hope for an issue by supporting a wide variety of anti-crime measures. Rather than choosing between various competing proposals, the legislature stood ready to pass five different versions of ``three strikes,'' allowing the governor to chose between them.

Wilson announced his decision on March 7, rejecting a proposal drafted by the California Association of Prosecutors as too soft on crime and choosing instead the broadest of the proposals with an estimated extra annual cost of $2 billion a year. For those who think that various ``three strikes'' proposals being considered around the country this season are pretty much alike, a few comparisons will show the enormity of the new California program. In New York, for example, Gov. Mario Cuomo's life-term legislation will affect the sentences of about 350 violent offenders a year. The plan that Wilson approved will increase the sentences of 25,000 offenders a year, 70 percent of them convicted of nonviolent crimes and the great majority not multiple recidivists. And although the California prosecutors' proposal covered residential burglaries, the governor's particular approach will triple the cost of the total package because burglars will make up more than two-thirds of the total population estimated for ``three strikes'' treatment.

All this was too much even for the family of the girl whose death had provoked the bonanza of sentencing legislation. The day after the governor had chided California district attorneys for insufficient toughness, the Klaas family publicly criticized the governor for signing a law that shifted the focus away from violent crime.

But anyone who thought that such criticism would moderate Wilson's effort was forgetting that even the hardball ``three strikes'' proposal had failed to make crime a partisan issue in the coming campaign. So the day after signing the measure, he opened his campaign for reelection by proposing still further crackdowns on crime as the central element of his program for California in 1994. The governor continues to face a political imperative to push on crime until he creates a division between him and his Democratic opponents. And the Democrats keep trying to deny the governor political capital by giving him everything he wants.

The spectacle of a governor calling district attorneys soft on crime is the sort of political hokum that makes covering state government genuinely amusing. Three factors, however, turn this particular farce into a California tragedy.

FIRST, 200,000 adults currently are serving time in this state's prisons and jails, twice as many as in any other system in the free world and about four times as many as California was locking up in 1980. So the state already has lived through the largest penal-system expansion in American history, at an annual cost for prisons alone of just under $3 billion. Adding $2 billion a year to the correctional budget will only widen California's lead.

Second, the money that state government spends on prisons is sorely needed elsewhere. California has been stone broke for four years, legally unable to tax further and fiscally incapable of supporting decent schools and roads or a declining university system. Lately, state government has cut back its contributions to local government by billions in order to pay the state's bills. ``Three stikes'' will make things worse, requiring more prisons and guards (who are paid more than teachers). More prisons will likely mean fewer police officers.

The third problem is that the program will not do much to reduce violence. The current changes will affect a criminal population that is 70 percent burglars; the only extensions of incarceration for seriously violent offenders will come during years long past their peak periods of risk.

So the level of political theater of ``three strikes'' is far greater than the criminal justice results. A state in deep financial trouble will waste billion of dollars on policies that are punitive beyond the imagination of even its prosecuting attorneys.

History will not be kind to any of this issue's major players in California. The Democratic legislative leadership and gubernatorial candidates have placed political safety before principle. Unlike some of the true-believing Republicans in the state Legislature, people such as Assembly Speaker Willie Brown (D) and would-be governor Kathleen Brown (D) know a great deal more than they have been saying about penal policy in California.

But Wilson's performance deserves special mention. Many times through this past autumn and winter, Wilson has chosen the most extreme and most exploitative option available to him.

Fear of violent crime always presents an opportunity for demagogues. It is the moral responsibility of informed government officials to counsel against populist extremes. That sort of leadership has been lacking in California this year and in short supply throughout the rest of the nation. The Opinion/Essay Page welcomes manuscripts. Authors of articles we accept will be notified by telephone. Authors of articles not accepted will be notified by postcard. Send manuscripts to Opinions/Essays, One Norway Street, Boston, MA 02115, by fax to 617 -450-2317, or by Internet E-mail to OPED@RACHEL.CSPS.COM.